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###### Department of Education

# AGENCY:

Department of Education.

# ACTION:

Notice of arbitration panel decision under the Randolph-Sheppard Act.

# SUMMARY:

                        The Department of Education (Department) gives notice that on December 15, 2010 an arbitration panel rendered a decision in the matter of                         *Richard Thelen*                         v.                        *Michigan Commission for the Blind, Case no. R-S/08-7.*                         This panel was convened by the Department under 20 U.S.C. 107d-1(a), after the Department received a complaint filed by the petitioner, Richard Thelen.                    

# FOR FURTHER INFORMATION CONTACT:

You may obtain a copy of the full text of the arbitration panel decision from Suzette E. Haynes, U.S. Department of Education, 400 Maryland Avenue, SW., Room 5022, Potomac Center Plaza, Washington, DC 20202-2800. Telephone: (202) 245-7374. If you use a telecommunications device for the deaf (TDD), call the Federal Relay Service (FRS), toll-free, at 1-800-877-8339.

                        Individuals with disabilities can obtain this document in an accessible format (                        *e.g.,*                         braille, large print, audiotape, or computer diskette) on request to the contact person listed under                         **FOR FURTHER INFORMATION CONTACT**                        .                    

# SUPPLEMENTARY INFORMATION:

                    Under section 6(c) of the Randolph-Sheppard Act (Act), 20 U.S.C. 107d-2(c), the Secretary publishes in the                     **Federal Register**                     a synopsis of each arbitration panel decision affecting the administration of vending facilities on Federal and other property.                

## Background

Richard Thelen (Complainant) alleged violations by the Michigan Commission for the Blind, the State licensing agency (SLA), under the Act and its implementing regulations in 34 CFR part 395. The Complainant alleged that the SLA violated the Act, the implementing regulations, and State rules and regulations by suspending his vending operator's license at a vending facility at the Capitol View building under management of The Department of Community Health (DCH) in Lansing, Michigan (Capitol View).

                    On February 12, 2008, the SLA received a complaint from DCH alleging that the Complainant had poor sanitary conditions at Capitol View and demanded that Complainant be removed from the vending facility. On                           ( print page 21872)                        February 13, 2008, the SLA suspended Complainant from the facility.                

Complainant then requested a full evidentiary hearing from the SLA on this matter. On August 4, 2008, the Administrative Law Judge (ALJ) issued a recommended decision.

On November 14, 2008, the SLA adopted the ALJ's recommendation as final agency action. Specifically, the SLA reimbursed Complainant for lost wages for the five-week period from the time that complainant was removed from his facility in February 2008 until his eligibility was restored in March 2008 and for the two additional weeks for a transition period to allow Complainant after his eligibility restoration to bid on other locations. In addition, the SLA reimbursed Complainant for attorney's fees and service time credit for time lost during his license suspension. Also, the SLA agreed to provide complainant assistance with bidding on new vending locations. However, the SLA denied the complainant's request for punitive damages.

Subsequently, Complainant filed with the Department a request for federal arbitration seeking an appeal of the state fair hearing decision based upon the following reasons: (1) Complainant alleged that the attorney fees of $3,550 awarded to him by the SLA were inadequate; (2) Complainant requested service time for retirement alleging he would have been working if he had not been improperly removed from his facility; (3) Complainant requested that he receive a priority bid for another vending facility; (4) Complainant requested loss wages from the time he was removed from his facility to the time of his retirement several years in the future; (5) Complainant requested punitive damages because he asserts that the SLA summarily removed him from the facility and awarded it to another vendor before the SLA determined the validity of the complaint against him by DCH; and (6) Complainant alleged that he did not receive due process from the SLA.

## Arbitration Panel Decision

After reviewing all of the evidence and testimony, the panel unanimously ruled:

(1) Complainant was entitled to be reimbursed for one Additional hour of attorney's fees in the amount of $200.00.

(2) Complainant's request for service time for Retirement was under the authority of the Office of Retirement Services (ORS) and not under the authority of the Federal arbitration panel. However, the SLA agreed to recommend service credit to ORS for the time Complainant's license was suspended.

(3) Complainant was not entitled to receive a a priority bid for another vending facility based upon the findings that a priority bid would harm other vendors and there was no basis to determine that Complainant needed a priority bid in order to be successful.

(4) Complainant's request to be awarded lost wages from the time he was removed from his facility to the time of his later retirement was denied. However, the panel also ruled that the SLA's calculation of lost wages was unreasonable. The SLA had granted Complainant seven weeks of lost wage. This was based on the five-week period from the time the Complainant was removed from his facility in February 2008, until his eligibility was restored in March 2008, plus two additional weeks for a transition period to allow Complainant to bid on other locations once the SLA restored his eligibility.

The panel ruled that the transition period approved by the SLA was unreasonable in that it only allowed Complainant two weeks to bid on another location. Thus, the panel awarded the Complainant an additional ten weeks of lost wages at $192.32 per week or a total amount of $1,923.20.

(5) Complainant's request for punitive damages was denied based upon the finding that the SLA did not engage in extreme or outrageous behavior. 

(6) Complainant had not been denied due process concerning his complaint given that any procedural errors were rectified based upon the timely restoration of his eligibility and compensatory damages.

The views and opinions expressed by the panel do not necessarily represent the views and opinions of the Department.

*Electronic Access to This Document:*                     The Official version of this document is the document published in the                     **Federal Register**                    . Free Internet access to the official edition of the                     **Federal Register**                     and the Code of Federal Regulations is available via the Federal Digital System at:                     *http://www.gpo.gov/​fdsys.*                     At this site you can view this document, as well as all other documents of this Department published in the                     **Federal Register,**                     in text or Adobe Portable Document Format (PDF). To use PDF you must have Adobe Acrobat Reader, which is available free at this site.                

Dated: April 14, 2011.

Alexa Posny,

Assistant Secretary for Special Education and Rehabilitative Services.

[FR Doc. 2011-9476 Filed 4-18-11; 8:45 am]

BILLING CODE 4000-01-P